Many clients wish to avoid probate because they may have heard advertisements or seminars that have presented information about how challenging probate can be. 

The California Probate Code is the body of law that governs the protection of those who cannot take care of themselves and how their assets are passed upon their death.  This code section exists to protect us when we are weak or vulnerable and provides the rules that govern how our assets are passed and that our final wishes are respected.

The Probate Court is a division of the local County Superior Court.  It is typically one to three courtrooms where issues that fall under this code section are heard by local judges.  Around the Bay Area, there are probate courts in San José, Redwood City, Santa Cruz, San Francisco, Oakland, Martinez, Fairfield, Marin, and Santa Rosa.

“Probate” also commonly refers to the court process where a Will is proven as valid or invalid, where claims can be filed against the estate, and is generally understood to mean the court procedure that directs how an estate is administered and settled.  The Executor would direct this process, with the approval of the Court.

If there is no Will, then the “Probate” will mean that someone applies to be the “Administrator” of the estate, and the assets will pass according to the laws that govern what is known as “intestate succession.”

There are many other issues that can be brought before the Probate Court (including whether or not the nominated agent under a Power of Attorney or Advance Health Care Directive have acted properly).  The above is a brief summary of what interactions most people will have with the Probate Court.

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